Clausen v. Head

• Decision Date: 30 April 1901
• Citation: 85 N.W. 1028,110 Wis. 405
• Parties: CLAUSEN v. HEAD ET AL.
• Court: Wisconsin Supreme Court

110 Wis. 405

85 N.W. 1028

CLAUSEN

v.HEAD ET AL.

Supreme Court of Wisconsin.

April 30, 1901.

Appeal from circuit court, Kenosha county; Frank M. Fish, Judge.

Action by John Clausen against Dan Head and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Action on contract to recover of defendants as partners the sum of $1,000. Defendants, for some time prior to 1895, pretended to be a corporation by the name of Dan Head & Co., and as such carried on a banking business in the city of Kenosha, Wis. At the time named, the company, as a corporation, made an assignment to George Hale for the benefit of creditors. Pursuant thereto said assignee took possession of the assets of the ostensible assignor and proceeded to administer his trust. Plaintiff, pretending to have a claim against said company, with knowledge that it was a mooted question whether the association was a corporation or a partnership, filed his claim in the assignment proceeding, using this language: “This deponent does not admit that Dan Head & Co. is a corporation and does not waive his right to proceed against them or either of them as partners.” The assignee filed objections to the claim, and such proceedings were thereafter duly taken that an issue was presented for judicial determination as to whether the claim represented indebtedness of Dan Head & Co. or a liability of one Urban J. Lewis. Such proceedings were duly taken for the final determination of such issue that it was decided, in the circuit court having charge of the assignment proceedings, in favor of the assignee. A judgment was duly rendered to that effect, an appeal was taken from such judgment to this court, and a decision was here rendered affirming the judgment of the court below. Clausen v. Hale, 96 Wis. 100, 71 N. W. 122. February 2, 1900, in Slocum v. Head, 105 Wis. 431, 81 N. W. 673, 50 L. R. A. 324, it was decided that Dan Head & Co. was not a corporation, but a partnership; but that the association known by such name might have the status of a corporation by estoppel as to persons who dealt with it as such. Subsequent to the last occurrence referred to, this action was brought against the members of the firm of Dan Head & Co. as partners. The relief sought in the action was the same as that involved in the aforesaid issue formed in the assignment proceedings. The answer to the complaint raised for decision the question of whether the former adjudication of the claim, under the doctrine of res adjudicata or the doctrine of estoppel, or both, precluded plaintiff from retrying the question as against defendants, or whether his claim represented indebtedness of Dan Head & Co. The question was decided in favor of defendants, and from the judgment accordingly entered this appeal was taken.Baker & Baker (Wallace Ingals and A. L. Sanborn, of counsel), for appellant.

Peter Fisher, for respondents.

MARSHALL, J. (after stating the facts).

The judgment must be affirmed upon several grounds, either of which is sufficient. If appellant, in the transaction out of which the alleged claim arose, dealt with the association known as Dan Head & Co. as a corporation, such dealing, by estoppel, as to such transaction, fixed the status of the company to be what it was represented and recognized to be therein. Slocum v. Head, 105 Wis. 431, 81 N. W. 673, 50 L. R. A. 324. If the dealings with the association, if any such were had, were not with it in the capacity mentioned, since it appears beyond dispute that when the claim was filed with the assignee appellant recognized, for the purposes of the proceeding, the existence of Dan Head & Co. as a corporation and the assignment as that of such corporation, thereby, if the situation were otherwise before, the claim, if in existence against Dan Head & Co. in any capacity, became by estoppel a claim against the company as a corporation and the assignee in his representative capacity as assignee thereof. If appellant, before filing his claim, was not bound by estoppel to recognize Dan Head & Co., as a corporation, as his debtor, if the company was indebted to him at all, he had two remedies to enforce it, which were inconsistent with each other. He could proceed against the association outside of or in the assignment proceedings, as a corporation, or against the members thereof as partners. Having made an election between two courses, with knowledge of the facts, he waived the one not chosen. Warren v. Landry, 74 Wis. 144, 42 N. W. 247;Bank of Lodi v. Washburn Electric Light & Power Co., 98 Wis. 549, 74 N. W. 363;Carroll v. Fethers, 102 Wis. 436, 78 N. W. 604;Barth v. Loeffelholtz (Wis.) 84 N. W. 846; Fuller-Warren Co. v. Harter (decided April 9, 1901) 85 N. W. 698.

The foregoing propositions are so well settled, and the application thereof to this case so clear, that a mere statement of them, with the facts, is deemed sufficient to show that they justify the judgment appealed from and require its affirmance, regardless of whether or not it was rendered upon such grounds.

We fully agree with counsel for appellant that there is no such privity between the members of the corporation and the...